There was uncertainty about her urinary output and when blood tests were done later her bilirubin level was still significantly raised suggesting that the biliary blockage had not been cleared. will among others, derive guidance from past awards in comparable cases. Mr Christopher Gibson QC and Mr Paul Dean (instructed by Blake Lapthorn Tarlo Lyons Solicitors) for the Claimant, Mr Derek Sweeting QC (instructed by The Treasury Solicitors) for the First Defendant. Bailey v The Ministry of Defence & Anor  EWHC 2913 (QB) (07 December 2007) Bailey v The Ministry of Defence & Anor  EWHC 2913 (QB) (07 December 2007) Specifications. From then on, or at least from later that day when proper resuscitation was eventually undertaken, the process became one of clinical catch-up. Bailey v Ministry of Defence and another  EWHC 2913 (QB);  EWCA Civ 883,  1 WLR 1052 Baker v Willoughby  AC 467 (HL) Barker v Corus (UK) plc  UKHL 20,  2 AC 572 Barnett v Chelsea and Kensington Hospital Management Committee  2 WLR 422 (QBD) Bolitho v City of Hackney Health Authority  AC 232 (HL) 14. If, as has to be accepted in the light of the evidence, Group Captain Watkins cannot really be criticised for not doing that in the particular circumstances, the question arises of what should happen if there is uncertainty about whether the blockage had indeed been relieved. He clarified that in a supplemental report provided shortly before the trial when he said that had she been resuscitated properly over the first twelve hours or so then, although she would have probably gone into renal failure, the periods of dialysis would have been shortened significantly and may have lasted for 3 4 days only. Because Miss Bailey was so weak, she could not clear her air passages and she choked. I do not think there can be any doubt that it was indeed very considerable. With some justification, Mr Sweeting protested that this was a new proposition that had not found its way into any of the written material provided by Professor Williams and ought, accordingly, to be approached with considerable caution. The First Defendant's case is that it could only have been that that had any bearing on her weakness at that time, the events of 11 and 12 January being too remote for it to have had any material influence. Waller LJ (delivering an opinion with which Sedley LJ and Smith LJ concurred) upheld the High Court, and ruled that the material increase in risk to Miss Bailey created by the Ministry of Defence's hospital made for a sufficient causal connection to be liable in negligence. I have already alluded to the emergence of this condition following the ERCP. In Bailey the Claimant aspirated vomit leading to a cardiac arrest and hypoxic brain damage. Bolitho v City and Hackney Health Authority  AC 232. Certainly on this issue, I prefer and accept Dr Dickinson's view. Facts. However, the balance of the expert evidence is, in my view clear: that had she been properly resuscitated overnight she would have been fit for and, if correctly cared for, would have been subjected to a further intervention on 12 January to resolve the two areas of uncertainty left over from the previous evening whether the biliary blockage had indeed been removed and whether the internal bleeding had been stopped. In the High Court Foskett J held that Miss Bailey should recover compensation. Bailey v The Ministry of Defence & Anor  EWHC 2913 (QB) (07 December 2007) Categories: Personal Injury | Clinical Medical Negligence Court Date: Friday, 07 December 2007 He held that where the "but for" test of causation cannot be satisfied because of some uncertainty, it is relaxed and a claimant will succeed in getting compensation if the defendant materially contributed to the cause of the injury. Group Captain Watkins was himself a surgeon and this approach would have been perfectly feasible. She had suffered acute and severe pancreatitis throughout the same period and, on any view, the effect of that must have played a part in her continued weakness as at 26 January. I do not think that Dr Dickinson, or indeed Dr Goodman for that matter, had actually focused on what ought to have been done on 12 January if proper resuscitation had been implemented. Bailey (by her father and litigation friend) v Ministry of Defence and another – WLR Daily. He expanded on the process of catabolism in a supplementary report. This list may not reflect recent changes (). When he discussed the position with his colleague who had provided a report for the Second Defendant (Professor Sacks), he modified his view to accept that she would have gone on to suffer renal failure and would have required dialysis in any event (presumably on the basis of the pancreatitis), though he maintained the position that she would have been less ill and would have sustained a lesser degree of renal impairment if she had been properly resuscitated. This would have enabled an investigation into whether the stone had been removed and it would have presented an opportunity to insert a stent if it was clear that it had not. As I indicated at the outset of this judgment, it had originally been the Claimant's case that she should not have been transferred from the ITU to the Renal Ward on the morning of 26 January. Equally, if in fact there had by then been some small improvement in her overall condition because the effects of the pancreatitis were subsiding, then the inference would have to be that the weakness attributable to the earlier negligence would have played a more dominant role. He said that by 13 January it was a "no-brainer" that there should have been further intervention. The claimant was a patient at a hospital run by the defendant who required routine treatment to set the bones in his wrist. In Wilsher the Claimant was negligently over-oxygenated when a premature baby. There is no doubt that this particular ERCP proved to be a difficult one. So much was agreed by Dr Dickinson and Dr Goodman when they (together with a Dr Anderson who had reported for the Second Defendant) discussed the case. I will have to address in due course my conclusions as to what impact, if any, those events and the build up to them had upon the Claimant's overall condition some 7-10 days later when she suffered her cardiac arrest. Group Captain Watkins estimated that the total blood loss was 1-1 units. Share. The Claimant is now seriously disabled and, if it is established that the brain damage she suffered arose from negligence, she will recover substantial damages. As thus noted, this is ambiguous as to whether the bleeding had in fact ceased. 9. However, it is no more probable than any other construction and the issue would still remain of the contribution made to her overall condition at the time the aspiration took place of the component attributable to the negligent treatment. 27. She bled extensively, but was put in a ward with little supervision. It was in these terms: My attention has not been drawn to any subsequent authority that has cast doubt on the formulation of the burden on the Claimant as set out in that passage. Bearing in mind that the ERCP took place between 16.00 and 17.30 on 11 January, this covers the period until about the same time following day. Dr Goodman, who was generally more supportive of aspects of the treatment given than the other experts, said that the Claimant was 'on the cusp of requiring a blood transfusion' after the ERCP and said that she should have been given intravenous fluids before leaving the endoscopy room. She was critical. According to Dr Dickinson, it usually takes about 6-8 hours to develop. She was not resuscitated properly during the night, and she was very unwell in the morning. Ratio: The claimant had suffered brain damage following cardiac arrest after inhaling vomit. Bailey v Ministry of Defence and Another Court of Appeal "Where medical science could not establish the probability that but for an act of negligence an injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the 'but for' test was modified and the claimant would… This seems to be the generally accepted mechanism amongst all the experts. Otherwise, it is a multiple potential cause situation, like Wilsher, in which a causal link cannot be forensically identified. It can be a difficult issue in such cases: see per Lord Hoffman in Fairchild at para 69. Published 6 February 2019 Brexit transition. This means feeding the patient by tube and, of course, monitoring closely all other functions. 60. Although, of course, some of the Hypnovel initially administered would have been metabolised by that time, there is no doubt that a further 6 mg did contribute to a very large overall administration of sedation. 5. Livingstone v Ministry of Defence  Lloyd v Dugdale  Lloyd v Grace, Smith & Co (1912) Lloyd v McMahon  Lloyds Bank v Carrick  Lloyds Bank v Rosset  Local Government Board v Arlidge  Localbail v Bayfield Properties  Lodgepower v Taylor  Lombard North Central v Butterworth  17. March 2003 Facts . 49 At –. Against that background the opinion of Wing Commander (now Group Captain) Mark Watkins was sought. The question in the Court of Appeal was whether the first Ministry of Defence hospital caused the brain damage. The Claimant was seen by Group Captain Watkins on the morning of 9 January. 35. As I understand the evidence, the essential non-surgical treatment for acute pancreatitis is effectively to allow the pancreas to rest by not permitting the patient to eat whilst the inflammation settles naturally. Facts. Dr Ryan said in his report, and Mr Sweeting has emphasized it, that 'pancreatitis is a very difficult condition to manage often with a remitting and relapsing course [and that] it is quite unpredictable ' I think it is right to bear that in mind, though, that his comments appeared to have been directed to management outside an ICU or ITU environment. 36. But she started to look better and was moved to the renal ward. He also recieved a memento from NSG, DG, Anup Kumar Singh during the inauguration. The Claimant had been given the sedative Hypnovel, 7.5 milligrams at 16.00 and 2.5 milligrams at 16.20. The claimant’s husband was in the Navy stationed at a remote base in Norway. R Bagshaw. It does this by enabling the capture and presentation of information in a rigorous, coherent and comprehensive way that aids the understanding of complex issues. 58. She and Mr East went to Kenya on holiday between 24 September and 9 October 2000. That may simply have been a function of the way in which the issues in this litigation had developed. Again I will return to this in due course. That having been said, Group Captain Watkins did go so far as to acknowledge that what had happened overnight following the ERCP on 11 January was 'probably a serious deviation from what is acceptable.' 15. It hardly needs stating that this was a very major operation (incidentally by now the Claimant had been transferred to Queen Alexandra Hospital, Cosham) the outcome of which, in common parlance, was 'touch and go'. The result in Bailey is, therefore, clearly correct, since it coheres in substance both with the relevant authorities and with common sense. This was one possible cause of the retrolental fibroplasia (RLF) from which he suffered and which resulted in his blindness. Counsel for Miss Bailey argued that the MoD hospital was nevertheless liable because although the brain damage would not, strictly, have been caused "but for" the substandard care, the substandard care had materially increased the risk of harm. Rushmi Sethi | Personal Injury Law Journal | November 2017 #160. The overall working diagnosis during November and December of those who saw her at the Royal Hospital Haslar where she had been referred was of infective hepatitis. By then she was displaying many of the accepted diagnostic features raised white blood cell count, raised amylase, abdominal pain, raised C-Reaction Protein (CRP) and raised urea. Bailey v Ministry of Defence  EWCA Civ 883 is an English tort law case. She was then transferred to another hospital, the Queen Alexandra and St Mary's Hospital in Portsmouth and put into intensive care. By contrast Marc Staunch has been critical of "hairline distinctions" that the case law has given rise to, but focused some of his criticism on Waller LJ's universal approach, saying. The Ministry of Defence Architecture Framework (MODAF) is an internationally recognised enterprise architecture framework developed by the Ministry of Defence (MOD) to support defence planning and change management activities. Following the removal of the packing on 19 January, the Claimant remained on mechanical ventilation, tube feeding and dialysis until 24 January. She had inhaled her vomit because she was in a very weakened state. Oxford. She came back with what was suspected to be gallstones. The Claimant was treated negligently but he … 30. Skip to main content. If that is demonstrated the operator can create a small cut (a sphincterotomy) which may allow removal of the stone with a balloon or basket or simply allow the stone to fall out into the intestine thus relieving the blockage. In fairness to Dr Goodman, however, I should record that when asked about the possibility of further intervention he did accept in his evidence that by the afternoon of 12 January "the evidence [gave] enough room to hesitate" by which I understood him to mean that it ought to have been seriously considered then. 50 (1859) 1 E & … The “but for” test was modified in the case of Bailey v Ministry of Defence.6 Ms Bailey was admitted to hospital for a gall stone operation. 51. Until shortly before the trial the claim advanced on her behalf embraced allegations against those responsible for her treatment at the Royal Hospital Haslar (at the material time it being managed by the First Defendant, the Ministry of Defence) and against those responsible for her care at the Queen Alexandra and St Mary's Hospitals (for which the Second Defendants, the Portsmouth Hospitals NHS Trust, are and were responsible). Find out about us, our structure, groups, disclosures and services. I have already referred to the stormy passage between leaving the Royal Haslar Hospital and the removal of the packing of the liver following the second laparotomy on 19 January. Dr Goodman, who had produced a very lengthy report with a considerable amount of extremely helpful material attached to it, was no less experienced, but I felt that occasionally the wood was concealed by the trees and that there were areas where his evidence did not stand up to close scrutiny. Following her return from Kenya, where she had had some gastric problems, she appeared jaundiced and continued to experience further gastric difficulties. 12. The endoscope also has a side channel down which other tubes or instruments can be passed. In early January 2001 she was admitted to Royal Hospital Haslar (a hospital for civilian NHS patients, but also used and run by the Ministry of Defence). In Bailey the Claimant aspirated vomit leading to a cardiac arrest and hypoxic brain damage. He said he felt he could have put a stent in had she become sufficiently settled and he either wanted to do that or insert another balloon to see if the bile duct had cleared. However, there can be no doubting the seriousness of the overall condition she was in by the time of the operation on 16 January, an operation that would have been avoided had she received proper treatment overnight on 11 January and then during 12 January. Dr Ryan's evidence was that it was her weakened condition caused by the catabolism that prevented her from responding in the normal way to vomiting and which caused her to aspirate the vomit. Dr Goodman, a Consultant Gastroenterologist and General Physician based in Manchester, who gave evidence for the Defendant, seemed less willing at the joint meeting of the experts to accept that the blood loss was unusually considerable, but he too said that he had not seen blood loss in this quantity in an ERCP. What I am prepared to accept, because it seems to me to be a common sense assumption, is that the Claimant's generally weakened and debilitated condition on 26 January caused her not to be able to respond naturally and effectively to the emergence of vomit from her gut with the consequence that she inhaled it. It concerns the problematic question of factual causation, and the interplay of the "but for" test and its relaxation through a "material contribution" test. That also had involved a blood transfusion of 3 units on 13 January and a gastroscopy on 14 January to investigate upper gastro-intestinal tract bleeding. I cannot say whether the contribution made by this component was more or less than that made by the pancreatitis and it follows that I cannot say whether the contribution made by the pancreatitis was greater or smaller than the contribution of the other component. 25. She did, of course, survive, but her family had been prepared for the worse. The net result of the ERCP was that there could be no certainty that the blockage had been cleared, no stent had been inserted, the Claimant had been heavily sedated and she had lost considerable blood. However, by early January 2001, with things getting progressively worse, attention was being focused on the possibility of gallstones having been the cause of the problem. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. It could not be said with certainty that it was their poor care that led to Miss Bailey's weakness (and choking leading to brain damage), because her weakness was also a result of the pancreatitis that Miss Bailey developed (and that was not the MoD hospital's fault). Two causes had contributed to … Department of Defence. Group Captain Watkins obviously wanted that to be better controlled if possible before performing the ERCP. In Bailey -type situations, on the other hand, it is the apportionment exercise, which would be carried out were the cumulative causes to have operated independently, that has to be modified. 49. For the previous twelve days she had been an inpatient in the Intensive Therapy Unit (ITU) at the Queen Alexandra Hospital, Portsmouth, to which hospital she had been transferred following treatment at the Royal Hospital Haslar in Gosport. R v Bailey Crim LR 353 Court of Appeal The appellant went to the house of his ex-lover's new partner, Mr Harrison. 21. It follows that there must be judgment for the Claimant with damages to be assessed. It lasted approximately 90 minutes before it was abandoned. It was apparent that Dr Ryan was still of the view that she should not have been discharged from the ITU when she was, but he acknowledged, having seen the detailed ITU records, that there was evidence that she could maintain her own airway and had some control over swallowing by then. It follows, therefore, that had the Claimant been properly resuscitated following the inconclusive ERCP on 11 January, and had she been followed up properly the following day, she would have had her continued biliary blockage attended to and any continued, or recommenced, bleeding stopped. Cue Bailey v Ministry of Defence 1 WLR 15. However, it would have avoided the PTC which, as a matter of fact, resulted in a tear to the liver with consequent further extensive bleeding. Authors; Librarians; Editors Matthews claimed that he had sustained personal injury caused by exposure to asbestos while he was serving in the Royal Navy between 1955 and 1968. See also Southern Association v Bailey 1984 (1) SA 98 (A) at 114A and Anthony and Another v Cape Town Municipality 1967 (4) SA 445 (A) at 451B-C.  I will therefore endeavour to do the best for the plaintiff with the very limited information available. 13. The appellant was visibly upset and Mr Harrison invited him in and they had a cup of tea and discussed the situation.The appellant was diabetic and had taken insulin but had not eaten. To the extent, however, that dialysis forms part of the picture, I do accept the view that Professor Williams put forward in his supplementary report to which I referred above. There were other criticisms made of what was (or, more accurately, what was not) done overnight, but the substantive criticism is the lack of fluid replacement therapy. Mr Derek Sweeting QC, who represents the First Defendant, has reminded me that Dr Dickinson did not mention a further ERCP on 12 January in his report and that this only emerged at the experts' meeting. Vitamin K was prescribed to assist in restoring her coagulation. Again, this is something that he had not developed in any of the written material previously and, whilst he may be right about what he says, I am disinclined to accept the precise mechanism he mentioned without further material to support it. * Enter a valid Journal (must The trial before me has been confined to the issues of breach of duty and causation. It is plain that acute pancreatitis in its severe form can be life-threatening. MENU. Check you’re ready for 2021. Friday, 07 December 2007; Tags England & Wales. Professor John Williams, a Consultant Physician in the Institute of Nephrology at the University of Wales College of Medicine, who was in fact the only nephrologist to give evidence, assessed the Claimant's renal function as having become 'significantly abnormal' by the time the provisional diagnosis of pancreatitis was made in the afternoon of 12 January and said that by 19.00 that evening she could be described 'as being in acute renal failure.'. Simon Finch, 50, told the Old Bailey he became disillusioned after reporting several homophobic attacks in 2013. 11. Mr Gibson has drawn my attention to what was said by Lord Bridge in Hotson at page 783. TORT – NEGLIGENCE – STANDARD OF CARE FOR MEDICAL PROFESSIONALS – CAUSATION. The claimant was a patient at a hospital run by the defendant who required routine treatment to set the bones in his wrist. 64. The operator then guides the endoscope to the desired destination by watching its path through the eyepiece or on an associated television monitor. She was treated at a hospital when she returned, but wasn't treated very well. 20. He said that the more severe the injury and the longer it is sustained, or repeated, the greater the effect and the longer it takes for recovery to occur. 2. Magdalen. Mr Sweeting has placed particular emphasis on the apparent improvement in the Claimant's condition early on 26 January and the variable course of pancreatitis as a condition, the implicit suggestion, as I understood him, being that the Claimant's inability to cope with the vomiting later on 26 January reflected a sudden downturn in her apparently improved condition associated with the pancreatitis. One component was the weakness engendered by the pancreatitis, the other was the weakness engendered by the consequences of the negligence on 11 12 January which led to a very stormy passage for the Claimant ending (purely from a surgical point of view) on 19 January when the packing of the liver was removed. If this approach to causation is permitted it does, of course, mean that the 'but for' test is not being applied: see Fairchild v. Glenhaven, etc, at paragraph 129 per Lord Rodger of Earlsferry. And breaks down muscle mass as a conclusion one piece of evidence by., disclosures and services in which the issues in this matter described it by saying that the was... Argued that a material contribution was indeed made here personal Injury law Journal | 2017... Minutes before it was, she could not clear her air passages and she choked note also recorded 'continued with... 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